Could a Vermont town clerk lawfully refuse to issue civil union licenses, and what penalties applied if she did?

Plain-English summary

Two weeks before Vermont's civil union law took effect on July 1, 2000, the Town Clerk of Fairfield asked the AG whether she had to issue civil union licenses and what would happen if she did not. Assistant Attorney General Bridget Asay answered that the duty was mandatory. Section 5 of Act 91 said a town clerk "shall issue a civil union license" to any qualified applicant. The word "shall" left no discretion.

A clerk who refused faced four exposures. First, a refused applicant could file a Rule 75 petition in superior court for a writ compelling issuance. Second, refusal could violate Vermont's public accommodations law (9 V.S.A. §§ 4500-4507), which prohibits discrimination on the basis of sex or sexual orientation, and the applicant could sue for injunctive relief, compensatory and punitive damages, costs, and attorney's fees. Third, the AG's office or the Human Rights Commission could initiate enforcement proceedings. Fourth, depending on the facts, refusal could violate 13 V.S.A. § 3006 (official misconduct) or 9 V.S.A. § 4507 (criminal penalties for public-accommodation violations), each carrying a fine up to $1,000 or imprisonment up to one year, though the opinion noted no prosecutor had signaled interest in criminal charges.

The opinion recognized that some clerks were resigning over the new law and observed that resignation was within their rights. It then expressed the AG's hope that, as of July 1, the clerks who remained in office would do their statutory duty.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Vermont expanded civil unions into full marriage equality in 2009, and the U.S. Supreme Court extended the same right nationwide in Obergefell v. Hodges, 576 U.S. 644 (2015). The current statutory framework for marriage licenses in Vermont differs from Act 91. The conflict-of-conscience analysis in this opinion has also been revisited many times since 2000 in court decisions and AG opinions across other states.

Historical summary

For town clerks (at the time): The duty to issue civil union licenses was non-discretionary. A clerk who could not perform that duty had to choose between performing it and resigning. There was no carved-out conscience exception under Vermont law.

For municipal liability researchers: The opinion treats the town as a co-defendant alongside the clerk, on the theory that the clerk acted as a town officer and that public-accommodations liability runs to the place of public accommodation as well as to the individual official.

For civil rights litigators: The opinion identifies four overlapping remedies for a refused applicant. Rule 75 was the fastest path to a license. The public accommodations action under 9 V.S.A. § 4506(a) was the path to compensatory and punitive damages plus attorney's fees.

Common questions

Did the AG advise that a clerk could ask a deputy to issue the license while she abstained?
The opinion did not address delegation. It treated the duty as the clerk's. A town that wanted a workable arrangement would have had to consult with counsel about whether a deputy could act in the clerk's stead under existing town-clerk-deputy statutes.

What happened in practice after July 1, 2000?
The opinion is silent on outcomes. Public news reports at the time indicated that several town clerks resigned and others continued to issue licenses without incident.

Were criminal prosecutions ever brought?
The opinion notes that no prosecutor had signaled an interest. The opinion does not record any subsequent prosecution.

Citations and references

Statutes and rules:
- Act 91 (2000), § 5 (mandatory issuance by town clerk)
- Vt. R. Civ. P. 75 (judicial review of agency or officer action)
- 9 V.S.A. §§ 4500-4507 (public accommodations)
- 9 V.S.A. § 4506(a) (private right of action; damages and attorney's fees)
- 9 V.S.A. § 4507 (criminal penalties)
- 13 V.S.A. § 3006 (official misconduct)

Source

• Landing page: https://ago.vermont.gov/about-attorney-generals-office/attorney-general-opinions
• Original PDF: https://ago.vermont.gov/sites/ago/files/2025-11/IO%206-16-00.pdf

Original opinion text

Informal Opinion #2000-3
June 16, 2000
Gerry F. Longway
Clerk
Town of Fairfield
P.O. Box 5
Fairfield, VT 05455
Dear Ms. Longway:
This letter is in response to your inquiry, dated June 14, 2000, regarding your
obligation as a town clerk to issue civil union licenses and the potential consequences if
you fail to issue these licenses.
As your letter appears to acknowledge, as a town clerk you are obligated by law
to issue a civil union license to any applicant who meets the legal requirements for
obtaining such a license. This obligation is established by Section 5 of Act 91, An Act
Relating to Civil Unions, which states in relevant part: "Upon application in a form
prescribed by the department, a town clerk shall issue a civil union license in the form
prescribed by the department, and shall enter thereon the names of the parties to the
proposed civil union, fill out the form as far as practicable and retain a copy in the clerk's
office." (Emphasis added.)
You have asked whether you or your town would be subject to any fines or
penalties for failure to issue civil union licenses. A person who is wrongfully denied a
civil union license would be able to pursue legal action against you and/or the town.
Rule 75 of the Vermont Rules of Civil Procedure permits judicial review, in superior
court, of "[a]ny action or failure or refusal to act by an agency of the state or a political
subdivision thereof, including any department, board, commission, or officer . . . ." A
person wrongfully denied a civil union license could use this Rule to seek a court order
requiring issuance of the license.
Wrongful denial of a civil union license may also violate Vermont's public
accommodations law, 9 V.S.A. §§ 4500-4507, which, among other things, bars
discrimination on the basis of sex or sexual orientation in places of public
accommodation. A person wrongfully denied a civil union license could bring an action
under 9 V.S.A. § 4506(a) against you or the town seeking injunctive relief as well as
compensatory and punitive damages. If successful, the person could also receive an
award of costs and attorney's fees.
There may be other remedies available to a person who is wrongfully denied a
civil union license. For example, such persons may petition this office to file a court
action seeking an injunction to compel compliance with state law. In addition, the
Human Rights Commission could be asked to initiate an enforcement action under our
public accommodations law.
You also asked about potential criminal liability. Depending on the
circumstances of a specific case, the unlawful failure to issue a civil unions license
could be considered a violation of either 13 V.S.A. § 3006 or 9 V.S.A. § 4507. These
are offenses that carry potential sanctions of a fine up to $1000 or imprisonment for up
to one year. However, we are aware of no one in the prosecutors' community to date
who has suggested using the criminal process to address these issues. As a practical
matter, the civil remedies are the ones that deserve your closest attention.
Recent news reports indicate that some town clerks will resign because of
personal or moral objections to the civil unions statute. It is, of course, well within their
rights to do so. It is our sincere hope, however, that as of July 1 the town clerks will
adhere to their obligations under this new law, as well as their many other statutory
duties.
I have enclosed copies of the statutes discussed above. I hope this letter is
responsive to your concerns.
Sincerely,
BRIDGET C. ASAY
Assistant Attorney General
Encs.
cc: Deborah L. Markowitz, Secretary of State